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21ST JUNE, 1956

CWLR (1957) 8


WACA 175/1955

LN-e-LR/1956/56 (SC)


CHILDREN AND WOMEN LAW:- Succession to land held under ‘kola’ tenancy– Rival Claims of Child of the Marriage and Step-Child – Land acquired by couple before their marriage under the Marriage Ordinance in circumstances indicating it was acquired for woman by man – Land acquired and held under a customary law system which does not allow for total alienation thereby taking it outside of the operation of the Marriage Act – Where couple subsequently lived on property after marriage – Nature of holding established – Rival claim to succeed to property brought by a child of the marriage and another child of the husband by another woman – How treated




SIR STAFFORD FOSTER-SUTTON, F.C.J. (Presided and Read the Judgment of the Court)





  1. Bing – (with A. Ogunsanya) -for Appellant.
  2. Ikpeazu (with L. V. Davis) -for Respondent.



LAND LAW – CUSTOMARY TENANCY: – “Kola” tenancy – Applicable principles Alienation of “Kola” tenancy -Inability thereof

CUSTOMARY LAW:— “Kola” tenancy – Whether once it is admitted that the property is held under a Kola tenancy, the one thing which the holder cannot do under native customary law is complete aliena­tion – Applicable principles

ESTATE ADMINISTRATION – SUCCESSION:– Property held under ‘Kola Tenancy’ – Whether property to which the Marriage Ordinance does not apply – pre-nuptial acquisition of property under Kola tenancy – whether matrimonial or family property – rights of child of the marriage and child of any party of the marriage with a third party



FOSTER SUTTON. F.C.J. (Presiding and Delivering the judgment of the court):

This was a claim for a declaration of title to property know as to New Market Road, Onitsha, an order for possession and for an injunction to re­strain the defendant from interfering with the property. The suit was filed in the Native Court of Onitsha, and was later transferred for hearing to the Supreme Court (as it then was), Onitsha, under the power of transfer given by section 28(1)(c) of the Native Courts Ordinance, Cap. 142.

The case came for hearing before Hurley, J., who after a detailed re­view of the evidence gave Judgment for the plaintiff, for all the relief claimed, and it is against that decision that the defendant has appealed.

On the pleadings, and the evidence tendered on his behalf at the trial, shortly put, the plaintiff’s case was that the land upon which buildings have since been built was acquired by his mother in the year 1908 from the Mgbelekeke family upon payment of customary dues. It was not in dispute that the land in question was held on what is known in Onitsha as a “Kola” tenancy.

At the time she acquired the land she was friendly with one Jacintho Daniel with whom she contracted a Christian Marriage in the year 1914. The plaintiff was born in 1912.

According to the plaintiff, his mother built on the land, and lived there until her death, intestate, in the year 1939, when he took charge of the prop­erty. It seems to have been generally agreed that his father lived with his mother at Onitsha until 1919 when he left, returning in or about the year 1925, he left again in 1934, and does not appear to have returned to Onitsha until 1940, that is to say, sometime after his wife’s death.

The plaintiff alleged that when his father returned to Onitsha he al­lowed him to occupy the premises now in dispute and to collect rents there­from until he died in 1953, when the defendant, who is a son of Jacintho Daniel by another woman, took charge of 16 New Market Road, and wrongly claimed to be entitled thereto.

It was the plaintiff’s case that he allowed his father to live on the prop­erty and collect the rents as an act of grace, because his father was unable otherwise to support himself.

The defendant’s statement of defence pleaded that the land in question was purchased from the Mgbelekeke family by one Mr. E. E. Williams, on behalf of the defendant’s father, Jacintho Daniel, by payment of a case of gin. He also alleged that at the time of the purchase the plaintiffs mother and Jacintho Daniel had not then “become friendly,” that it was his father who built on the land, and that he had taken the property under a devise in his father’s will of which probate had been obtained by him.

At the trial evidence was led by both sides of acts of ownership by the parties, and their alleged predecessors in title, all of which were considered by the learned trial Judge who reached the conclusion that they were not al­together inconsistent with the opposing claims; and he ultimately, rightly, I think, decided the case on the direct evidence regarding the transaction under which the land was originally acquired.

The evidence regarding the original transaction did not support the case as pleaded by the defendant. A copy of a record of proceedings concerning the land in dispute, brought by Jacintho Daniel in the year 1915, was put in evidence by the plaintiff, Exhibit “2.” In that case Jacintho Daniel swore that when he got the land he told the landlord that he was getting it for Mrs Daniel “a native of Onitsha,” and Mr. E. E. Williams, swore that he was pre­sent when the land was acquired, that “Kola was paid-10s-cash and 4 bottles gin and some kolanuts”; and one Peter Onwuta Osuma, a Red-cap Chief and the present head of the Mgbelekeke family, called as a witness by the de­fendant in the present case, said that Jacintho Daniel had told him he bought the land on behalf of his wife.

Mr Bing, for the appellant, argued the case on the footing that since Mr and Mrs Daniel contracted a Christian Marriage, the Marriage Ordinance, Cap 128, applies and the devolution of the property is governed by English law.

I must confess to having been puzzled at the hearing regarding the real relevancy of the point of the circumstances of this case, and I still am. Once it is admitted that the property is held under a Kola tenancy, the one thing which the holder cannot do under native customary law is complete aliena­tion. It is not, therefore, property to which the Marriage Ordinance applies. A number of grounds of appeal were filed, but apart from drawing at­tention to them Mr Bing confined himself to arguing ground 3, that the Judg­ment was against the weight of evidence, and that the plaintiff had not dis­charged the onus on him of proving his title to the land; on this ground the main burden of his argument was directed to the proposition that the acts of ownership of the defendant and Mr. J. Daniel were more convincing than those of the plaintiff and his mother, and ought to have been accepted.

One fact does clearly emerge from the evidence of both sides, namely, that whoever first acquired the land in dispute did so under native law and custom and held it under a “Kola” tenancy, and I think the balance of prob­ability is that the land would have been given to Mrs Daniel who was a native of Onitsha, rather than to Mr. J. Daniel who was not a native of the area. I do not think any useful purpose would be served by my going into any further detail regarding the evidence; it is fully dealt with in the Judgment of the learned trial Judge, and was closely examined by Mr. Bing before us. It is sufficient to say that there was clearly evidence upon which the learned trial Judge could properly reach the conclusions he did, and I have no doubt that had I presided at the trial I should have come to the same decision.

I would accordingly affirm the Judgment of the court below and dismiss this appeal with costs fixed at £26-0s-0d.


VERITY, Ag. F.J.: I concur.


IRWIN, Ag. F.J.: I concur.


Appeal dismissed


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